Sarnia police force’s refusal to act on rail blockade troubles judge

Not since the late David Marshall, another judge of the Ontario Superior Court, waded into the violent 2006 Six Nations occupation in Caledonia, Ont., has anyone on the bench spoken so plainly and bravely about the politicization of policing in Canada.
Enter another Superior Court judge, and as it happens, another David — this one Judge David Brown.
Judge Brown on Monday issued what amounts to a lament — I mean it in the crying-out-loud-in-grief sense too — for the rule of law in Ontario in giving the latest of a series of decisions on Idle No More rail blockades in two opposite corners of the province.
Though based in Toronto, Judge Brown ended up hearing the first application brought by CN Rail last month in relation to an aboriginal blockade in Sarnia, Ont.
This blockade began in the small southwestern Ontario city on Dec. 21, but because it wasn’t until late in the day that it became clear that the protesters weren’t going to move, Judge Brown ended up hearing an emergency after-hours motion from lawyers for CN Rail in Toronto.
The blockade was on what’s called a “spur line,” an industrial single track that runs from Sarnia to Courtright through the area’s “Chemical Valley.” The line services a handful of chemical and industrial plants, one of which, Entropex, is a plastic recovery facility that processes blue box recycling for more than 70 municipalities in Canada and the United States.
The spur line crosses the Chippewas of Sarnia First Nation, and it was there the blockade was established.
This first hearing was preoccupied with the hearing of evidence about the “just-in-time” nature of CN customers affected by the blockade and about the protest: Importantly, out of the protesters’ own mouths, was the fact that the blockade didn’t involve a claim to aboriginal title or land-claim issue, as was the purported case in Caledonia.
This protest was rather, as Judge Brown put it in his original decision, “more in the nature of an expression of opposition by one group of Canadian citizens to legislation which they oppose.”
He granted the injunction.
As he put it six days later, in a continuation of that injunction, “As a judge, I make an order expecting it will be obeyed or enforced. If it will not be enforced, why should I make the order?”
To the astonishment of the judge, however, nothing of the sort happened with his first order.
CN served the right people — the chief of the Aamjiwnaang Chippewas of Sarnia, the band office and of course the Sarnia police.
Evidence at the continuation hearing showed that process servers and CN officials went to the blockade — there were never more than 50 protesters there, sometimes just a handful of people — and tried desperately “to engage” the Sarnia police.
One Sarnia staff-sergeant told a CN inspector that his force would not assist in serving the order. An inspector told him “their regular members have been directed not to attend at the blockade,” an order that I have confirmed independently. (Sarnia rank-and-file officers were told “there would be absolutely no enforcement, observation of, or engagement at any level.”)
In fact, one staff-sergeant, Jeff Hodgson, who stopped by the blockade did so only to join a circle of protesters who were drumming; the YouTube footage of that little exercise is still online.
The CN inspector was also told that Sarnia police “advised they would not accompany them to the blockade, but did provide a police radio.”
CN lawyers were back in court before Judge Brown on Dec. 27, on which occasion the force didn’t even bother to send anyone to appear.
“I must confess,” the judge said that day, “that I am shocked by such disrespect shown to this court by the Sarnia police.”
The force lawyer, Glen S. Donald, did send a note to CN lawyers; it is a document stunning in its arrogance, urging CN to “edify” the judge.
Again, Judge Brown reviewed the evidence — that this didn’t even pretend to be a land-claim issue.
“Simply put,” he said, “they have chosen the spur line crossing as their Hyde Park and intend to express their views from that location regardless of the harm caused to those who use and rely on the spur line.”
Thus, he said, their aboriginal identity didn’t “immunize” them from the law, as sometimes, as Ontario’s appeal court has found, it may entitle native protesters to a more “nuanced” interpretation.
He was deeply troubled, in particular by the Sarnia force’s refusal to enforce his order. He clearly understood that police have operational discretion; his order allowed for that. Such disputes require precisely such a division of labour between courts and police, as he noted.
But, he said, “It was not open to the Sarnia police to interpret the injunction order as permitting the blockade to remain indefinitely….” Yet six days after his first order, there was the blockade, still in place, and there were the cops, sitting on their hands, when they weren’t drumming.
“With all due respect to the Sarnia police,” the judge said, “local police agencies cannot ignore judicial orders under the guise of contemplating how best to use their tactical discretion. Such an approach would have the practical effect of neutering court orders.”
A court order, Judge Brown said, “is not one amongst several chips to be played in an ongoing contest between the police and transgressors of legal rights.
“On the contrary, a court order is intended to initiate the process of bringing unlawful conduct to an end in a short period of time…”
Worrying that he perhaps ought to decline to grant a continuance of his order — because it would surely undermine the legitimacy of the courts to keep on making toothless orders — he nonetheless couldn’t bring himself to do that.
That was Dec. 27; the barricade stayed up until Jan. 2, when Sarnia police, under pressure from another judicial order, finally enforced the injunction.
Then, this past Saturday night, native protesters blocked the CN main line between Toronto and Montreal, again as part of Idle No More.
Again, on an emergency basis, the judge heard from CN lawyers, who were again seeking an emergency injunction to remove the blockade.
Judge Brown granted it, and when on Sunday morning, he read in his morning paper that the blockade had ended at midnight, he asked for evidence how it had come about.
He learned that the local sheriff had a copy of the order by 10:30 that night, and asked the local OPP for help.
There were all of 15 protesters present.
OPP Staff-Sergeant Scott Semple advised the sheriff it was “too dangerous” to serve the order, but said the OPP would accompany her the next morning. So, while the protesters left, the judge noted it was “not, as it turns out, because the police had assisted in enforcing the order.”
“That kind of passivity by the police leads me to doubt that a future exists in this province for the use of court injunctions in cases of public demonstrations,” he said.
Furthermore, he asked, given that police have powers of arrest already, “why does the operator of a critical railway have to run off to court to secure an injunction when a small group of protesters park themselves on the rail line bringing operations to a grinding halt. I do not get it.”
The rule of law — that arrangement by which citizens cede the use of force to public government agencies — is in some fundamental respects quite simple. It means, as the judge put it, that “no person in Canada stands above or outside of the law. Although the principle of the rule of law is simple, at the same time it is fragile.
“Without Canadians sharing a public expectation of obeying the law, the rule of law will shatter.”
As he said on Dec. 27, “In a real, where-the-rubber-meets-the-road sense, our courts are powerless.”
And there you have it: Judges can’t predict with any confidence if police forces will enforce their orders, and one of them even wonders aloud if he should issue another toothless direction; police don’t even do the court the courtesy of appearing when summonsed and native protesters need not bother with the ruse of feigning a land claim.
To borrow from Yeats, when things fall apart and the centre cannot hold, how far behind can the blood-dimmed tide be?
Postmedia News cblatchford@postmedia.com

Christie Blatchford was born in Quebec and studied journalism at Ryerson University in Toronto. She has written for all four Toronto-based newspapers. She has won a National Newspaper Award for column... read more writing and in 2008 won the Governor-General’s Literary Award in non-fiction for her book Fifteen Days: Stories of Bravery, Friendship, Life and Death from Inside the New Canadian Army.View author's profile